E9-21827. Approval and Promulgation of Implementation Plans; New Mexico; Excess Emissions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is approving revisions to the New Mexico State Implementation Plan (SIP) submitted by the Governor of New Mexico on behalf of the New Mexico Environment Department (NMED) in a letter dated October 7, 2008 (the October 7, 2008 SIP submittal). The October 7, 2008 SIP submittal concerns revisions to New Mexico Administrative Code Title 20, Chapter 2, Part 7 Excess Emissions (20.2.7 NMAC—Excess Emissions) occurring during startup, shutdown, and malfunction related activities. We are approving the October 7, 2008 SIP submittal because the revisions to 20.2.7 NMAC are consistent with the Clean Air Act (the Act). This action is in accordance with section 110 of the Act.

DATES:

This direct final rule will be effective November 13, 2009 without further notice unless EPA receives relevant adverse comments by October 14, 2009. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket No. EPA-R06-OAR-2008-0815, by one of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov.
• Follow the online instructions for submitting comments.
• EPA Region 6 “Contact Us” Web site: http://epa.gov/​region6/​r6comment.htm. Please click on “6PD (Multimedia)” and select “Air” before submitting comments.
• E-mail: Mr. Guy Donaldson at [e-mail]. Please also send a copy by e-mail to the person listed in the FOR FURTHER INFORMATION CONTACT section below.
• Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214-665-7242.
• Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.
• Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not on legal holidays. Special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket No. EPA-R06-OAR-2008-0815. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a fee of 15 cents per page for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The State submittal is also available for public inspection during official business hours, by appointment, at the State Air Agency listed below during official business hours by appointment: NMED, Air Quality Bureau, 1301 Siler Road, Building B, Santa Fe, NM 87507.

FOR FURTHER INFORMATION CONTACT:

Mr. Alan Shar, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone [phone], fax [phone], e-mail address shar.alan @epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” and “our” refer to EPA.

Outline

I. Background

A. What action are we taking in this document?

B. What documents did we use in our evaluation of the October 7, 2008 SIP submittal?

C. Why are we approving the October 7, 2008 SIP submittal?

II. Final Action

III. Statutory and Executive Order Reviews

I. Background

A. What action are we taking in this document?

We are approving revisions to 20.2.7 NMAC—Excess Emissions occurring during startup, shutdown, and malfunction related activities as revisions to the New Mexico SIP. We received this submittal with an October 7, 2008 letter from the Governor of New Mexico on behalf of the NMED.

We are approving the repeal of the existing EPA-approved 20.2.7—Excess Emissions, and replacing it with the revised version of 20.2.7 NMAC as contained in the October 7, 2008 SIP submittal. The existing 20.2.7 NMAC—Excess Emissions rule was approved by EPA on September 26, 1997 (62 FR 50518) at 40 CFR 52.1620(c)(66). See Chapter A of our Technical Support Document (TSD) prepared in conjunction with this rulemaking action for more information. The TSD is a part of the docket and available for public review.

The October 7, 2008 submittal also included proposed revisions to NMAC 20.2.70—Operating Permits. We are not taking action on those revisions as part of today's rulemaking action. The revisions to NMAC 20.2.70 are part of the Title V program approval, and will be handled in a separate rulemaking action.

B. What documents did we use in our evaluation of the October 7, 2008 SIP submittal?

The EPA's interpretation of the Act on excess emissions occurring during periods of startup, shutdown, and malfunction is set forth in the following documents: A memorandum dated September 28, 1982, from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and Radiation, entitled “Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions” (1982 Policy); EPA's clarification to the above policy memorandum dated February 15, 1983, from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and Radiation (1983 Policy); EPA's policy memorandum reaffirming and supplementing the above policy, dated September 20, 1999, from Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance and Robert Perciasepe, Assistant Administrator for Air and Radiation, entitled “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (1999 Policy); EPA's final rule for Utah's sulfur dioxide control strategy (Kennecott Copper), April 27, 1977 (42 FR 21472); EPA's final rule for Idaho's sulfur dioxide control strategy, November 8, 1977 (42 FR 58171); and the latest clarification of EPA's policy issued on December 5, 2001 (2001 Policy). You can find the 2001 Policy at: http://www.epa.gov/​ttn/​oarpg/​t1pgm.html (URL dating July 22, 2008). The EPA's interpretation of the Act related to exclusions from emission limitations for sources in certain startup, shutdown, or malfunction situations was upheld by the United States Court of Appeals for the Sixth Circuit in Michigan Mfrs. Ass'n v. Browner, 230 F.3d 181 (6th Cir. 2000).

C. Why are we approving the October 7, 2008 SIP submittal?

Under section 110(a) of the Act, EPA views all excess emissions as violations of the applicable emission limitation because excess emissions have the potential to interfere with attainment and maintenance of the National Ambient Air Quality Standards, or with the protection of Prevention of Significant Deterioration increments. However, EPA recognizes that imposition of a penalty for sudden and unavoidable malfunctions, startups or shutdowns caused by circumstances entirely beyond the control of the owner or operator may not be appropriate. The EPA has provided guidance on two approaches for addressing excess emissions, the use of enforcement discretion and providing an affirmative defense to actions for civil penalties. Neither approach waives liability or reporting requirements for the violation. Excess emissions occurring during periods of startup, shutdown, maintenance, and malfunction must be included in determining compliance with SIP emission limitations. States are not required to provide an affirmative defense approach, but if they choose to do so, EPA will evaluate the State's SIP rules for consistency with our policy and guidance documents listed in section B of this document. Our reasons for approval of the October 7, 2008 SIP submittal are as follows:

The NMED's October 7, 2008 SIP submittal adopts an affirmative defense approach to address excess emissions. This approach is permissible under the 1999 Policy.

The NMED's October 7, 2008 SIP submittal clearly states that operation resulting in an excess emission is a violation of the air quality regulation or permit, and may be subject to potential enforcement action. This statement is consistent with the 1999 Policy.

The NMED's October 7, 2008 SIP submittal adequately sets forth notification and reporting requirements for the owner or operator of a source having an excess emission. We believe that notification and reporting, including implementation of corrective action(s) when needed, of excess emissions will assist with the management of excess emissions and will enhance the New Mexico SIP by reducing the amount or frequency of future potential excess emissions.

The NMED's October 7, 2008 SIP submittal contains criteria to be considered when asserting an affirmative defense for an excess emission during startup or shutdown to claims for a civil penalty (not injunctive relief) that are similar, if not identical, to those in the 1999 Policy. We believe the criteria for asserting an affirmative defense are consistent with our guidance documents and should be approved.

The NMED's October 7, 2008 SIP submittal contains criteria to be considered when asserting affirmative defense for an excess emission during a malfunction to claims for a civil penalty (but not the injunctive relief) that are similar, if not identical, to those in the 1999 Policy. We believe the criteria for asserting an affirmative defense are consistent with our guidance documents and should be approved.

The NMED's October 7, 2008 SIP submittal clearly states that NMED's determinations concerning an owner or operator's assertion of the affirmative defense shall not preclude EPA or citizens' enforcement authority under the Act. This statement is consistent with 42 U.S.C. 7413 and 7604.

Neither section 20.2.7.111 NMAC nor section 20.2.7.112 NMAC of the October 7, 2008 SIP submittal makes an affirmative defense available to an owner or operator of a source having an excess emission due to maintenance related activities. We believe that maintenance activities are predictable events that are subject to planning to minimize releases, unlike malfunctions or upsets, which are sudden, unavoidable or beyond the control of owner or operator. The owner or operator of a source should be able to plan maintenance that might otherwise lead to excess emissions to coincide with maintenance of production equipment or other facility shutdowns. This position is consistent with EPA's interpretation of section 110 of the Act, and with our guidance documents.

The NMED's October 7, 2008 SIP submittal narrowly defines an emergency situation. An owner and operator may assert an affirmative defense for an emergency if certain criteria are met. See 20.2.7.113(B)(1) through (4) NMAC for these criteria. In any enforcement proceeding, the owner or operator seeking to establish the occurrence of an emergency has the burden of proof. In addition, NMED may require additional information reported within the time period specified by the department. See 20.2.7.113(C) and (D) NMAC. We believe this approach is consistent with our guidance documents.

For a section-by-section evaluation of the October 7, 2008 SIP submittal see Chapter B of our TSD. The TSD is a part of the docket and available for public review. For these reasons we are approving 20.2.7 NMAC into New Mexico SIP.

In addition, we are approving the repeal and replacement of the existing EPA-approved 20.2.7 NMAC Excess Emissions rule with the revised 20.2.7 NMAC contained in the October 7, 2008 SIP submittal. The existing EPA-approved 20.2.7 NMAC Excess Emissions rule provided for frequent startup and shutdowns, and exempted certain facilities from notification requirements. See Chapter A of the TSD. The existing EPA-approved 20.2.7 NMAC Excess Emissions rule did not conform with the 1999 Policy. The revised 20.2.7 NMAC contained in the October 7, 2008 SIP submittal conforms with the 1999 Policy, and its approval will enhance the New Mexico SIP. See Chapter B of the TSD.

II. Final Action

Today, we are approving revisions to New Mexico Administrative Code Title 20, Chapter 2, Part 7 Excess Emissions (20.2.7 NMAC—Excess Emissions) occurring during startup, shutdown, and malfunction related activities into New Mexico SIP. We are approving the repeal of the existing 20.2.7 NMAC, and replacing it with the revised 20.2.7 NMAC contained in the October 7, 2008 SIP submittal.

III. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act;
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994);
• Does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law; and
• Is not a “major rule” as defined by 5 U.S.C. 804(2) under the Congressional Review Act, 5 U.S.C. 801 et seq., added by the Small Business Regulatory Enforcement Fairness Act of 1996. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule.” Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 13, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2) of the Act.)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Hydrocarbons
• Incorporation by reference
• Intergovernmental relations
• Nitrogen oxide
• Reporting and recordkeeping requirements
• Ozone
• Volatile organic compounds

Dated: August 28, 2009.

Lawrence E. Starfield,

Acting Regional Administrator, Region 6.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart GG—New Mexico

2. The table in § 52.1620(c) entitled “EPA Approved New Mexico Regulations” is amended by revising the entry for “Part 7” to read as follows:

§ 52.1620

Identification of plan.

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(c) * * *

EPA Approved New Mexico Regulations

State citation	Title/subject	State approval/ submittal date	EPA approval date	Comments
New Mexico Administrative Code (NMAC) Title 20—Environmental Protection
Chapter 2—Air Quality
*        *        *        *        *        *        *
Part 7	Excess Emissions	7/10/2008	9/14/2009 [Insert FR page number where document begins]
*        *        *        *        *        *        *

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